Decision

On December 22, 2003, the
Township of Middletown petitioned for a scope of negotiations determination.
The Township seeks a restraint of binding arbitration of grievances filed by
P.B.A. Local 124. The grievances challenge the employer’s decision to assign
patrol officers to a swing shift based on the officers’ productivity rather
than seniority.

The parties
have filed briefs and exhibits. The PBA has submitted the certifications of its
president and two patrol officers. The Township did not file any certifications
or a reply brief. These facts appear.

The PBA
represents all police officers below the rank of sergeant. The parties’ collective
negotiations agreement is effective from January 1, 2000 through December 31,
2003. The grievance procedure ends in binding arbitration.

Article V is entitled Seniority.
Section C provides that “all other things being equal, traditional principles
of seniority shall apply to employment covered by this agreement as to shift
transfers.”

Article X is
entitled Hours. Section E provides that “Management has the right to change
shifts or the hours worked but must negotiate any impact of its changes in
reference to changes, wages, overtime and other compensation with the
Association.”

Article XXIX is entitled
Management Rights Clause. Section A.2 provides, in part, that the employer
retains the rights to “determine work schedules and shifts, as well as duties;
... and to be in sole charge of the quality and quantity of the work required.”

There are six
squads in the Patrol Division. Each squad works five days on, two days off, and
then five days on, three days off. Each squad rotates through three regular
8-hour shifts. Squad members also rotate through one of three swing or power
shifts. The squad lieutenant assigns the swing shifts. The record does not
indicate that any different duties are assigned to patrol officers on different
swing shifts.

In December
2002, a lieutenant assigned Patrol Officer Barry Grimm to a swing shift other
than his preferred assignment. The deputy chief and lieutenant told the PBA
president that swing shift assignments would now be based on an officer’s
productivity rather than seniority. When Grimm’s swing shift preference was
again denied in January, the lieutenant cited the number of motor vehicle
summonses written. On December 10, 2002, the PBA wrote to the chief, objecting
to the change in the swing shift selection process. He asked the chief to
provide the factors and criteria for evaluating each squad member in terms of
shift assignments.

On December 12,
2002, the chief responded by memorandum. He wrote that Article XXIX empowers
management to determine work schedules and shifts as well as duties. He added:

Shift commanders set expectations for their
subordinates along with patrol supervisors. It is up to the individual
supervisor and commander to manage their subordinates. As you are aware
employees are evaluated formally, as well as informally on a regular basis.
Informal evaluations include report writing, appearance, punctuality,
self-initiated enforcement activities, as well as community relations and
directed enforcement activity. Other factors that encompass police jobs and
responsibility are far too numerous to enumerate in this memo. Formal
evaluations, as you are aware, are reduced to writing on a semi-annual basis.

While it may be the desire of a particular employee
to work a particular shift, it is the department’s prerogative to assign and
deploy manpower. I certainly do not object to commanders attempting to factor
in the desire of an employee on the power shift, but I will certainly not
preclude commanders from deploying or assigning their subordinates to specific
assignments or districts.

On January 10,
2003, the PBA filed a grievance. The grievance asserted that the police
department had unilaterally implemented a new swing shift selection process in
violation of past practice and the collective negotiations agreement,
specifically Article V, Section C and Article X, Section E. The grievance
added:

As to the new work rules unilaterally implemented,
this grievance shall also serve as the PBA’s formal request to negotiate same.
Moreover, as to the “informal” evaluation of officers, the PBA hereby demands
that the Township advise as to certain procedural items; (1) by whom each
officer is “informally” evaluated; (2) how often said “informal” evaluations
are to take place; (3) the specific factors, criteria or other basis upon which
said “informal” evaluations are predicted; (4) to whom said “informal”
evaluations are being submitted; and (5) the manner which said “informal”
evaluations are being documented or memorialized.

In March 2003,
a lieutenant assigned a junior patrol officer to the swing shift preferred by
Patrol Officer Ernest Volkland. Volkland’s certification states that a
lieutenant told him that he was not assigned to his preferred shift because the
lieutenant had just given him a reprimand.

On April 9,
2003, the PBA filed two grievances on Volkland’s behalf. The first grievance
stated that he had been advised by the lieutenant that he would not be working
his shift of choice during the upcoming swing shift due to a recent letter of
reprimand. As a remedy, the grievance sought assignment to swing shift by
seniority and negotiation of all work rule changes. The second grievance
challenged the reprimand.

All three
grievances were denied. The PBA demanded arbitration and this petition ensued.
n1 Arbitration has been postponed pending this decision. n2

The Commission is addressing the abstract issue: is
the subject matter in dispute within the scope of collective negotiations.
Whether that subject is within the arbitration clause of the agreement, whether
the facts are as alleged by the grievant, whether the contract provides a
defense for the employer’s alleged action, or even whether there is a valid
arbitration clause in the agreement or any other question which might be raised
is not to be determined by the Commission in a scope proceeding. Those are
questions appropriate for determination by an arbitrator and/or the courts. [Id.
at 154]

Thus, we do not consider the contractual
merits of the grievances or any contractual defenses the Township may have.

PatersonPolicePBA No. 1 v. City of Paterson, 87 N.J. 78 (1981), outlines the steps of
a scope of negotiations analysis for police officers and firefighters:

First,
it must be determined whether the particular item in dispute is controlled by a
specific statute or regulation. If it is, the parties may not include any
inconsistent term in their agreement. [State v. State Supervisory Employees Ass’n.,
78 N.J. 54, 81 (1978).] If an item is not mandated by statute or regulation but
is within the general discretionary powers of a public employer, the next step
is to determine whether it is a term and condition of employment as we have
defined that phrase. An item that intimately and directly affects the work and
welfare of police and fire fighters, like any other public employees, and on
which negotiated agreement would not significantly interfere with the exercise
of inherent or express management prerogatives is mandatorily negotiable. In a
case involving police and fire fighters, if an item is not mandatorily
negotiable, one last determination must be made. If it places substantial
limitations on government’s policymaking powers, the item must always remain within
managerial prerogatives and cannot be bargained away. However, if these
governmental powers remain essentially unfettered by agreement on that item,
then it is permissively negotiable. [Id. at 92-93; citations omitted]

Arbitration will
be permitted if the subject of the dispute is mandatorily or permissively
negotiable. See Middletown Tp., NJPER 227 (P.13095 1982), affd NJPER Supp.2d
130 (P.111 App. Div. 1983). Paterson bars arbitration only if the agreement
alleged is preempted or would substantially limit government’s policymaking
powers. No preemption issue is presented.

The Township’s argues that the
assignment of swing shift duties is within its managerial prerogative so long
as the reason for the assignment is not illegal. The PBA responds that the
parties’ contract conditions shift selection by seniority “upon all other
things being equal” and thus protects the Township’s prerogative to ensure that
shift assignments take into account such needs as special skills,
qualifications, training, and supervision as required by our case law.

The Township’s argument sweeps
too broadly and would grant employers per se control over employee work
schedules and shift hours absent an illegal reason such as anti-union
discrimination. Our courts have rejected such a per se argument. See,
e.g., Teaneck Tp. v. Teaneck FMBA Local No. 42, 177 N.J. 560 (2003), aff’g 353
N.J. Super. 289 (App. Div. 2002). Public employers and unions may accordingly
agree that seniority can be a factor in shift assignments where all
qualifications are equal and managerial prerogatives are not otherwise
compromised. See, e.g.. Union TP., P.E.R.C. No. 2003-81, 29 NJPER 214 (P.63
2003), and the cases cited therein at 215. However, public employers have a non-negotiable
prerogative to assign employees to particular jobs, to meet the governmental
policy goal of matching the best qualified employees to particular jobs.
Id.

Under the
parties’ contract, shift assignments must be based on seniority only “upon all
other things being equal.” That language is mandatorily negotiable given Union
Tp. and protects management against having any prerogatives compromised.
Further, this record does not specify any differences in duties performed on
the swing shifts or indicate that the shift assignments were based on the
governmental policy goal of matching the best qualified employees to particular
swing shift duties.

We therefore conclude that the
Township’s governmental policymaking powers would not be substantially limited
by permitting an arbitrator to determine whether the shift denials violated the
parties’ negotiated seniority provision. The employer may argue to the
arbitrator that it was contractually entitled to deny the officers’ shift
preferences under the seniority provision and the management rights clause.

Order

The request of
Middletown Township for a restraint of binding arbitration of these grievances
is denied.

Notes

1. The Township does not contest the legal arbitrability
of Volkland’s reprimand or procedural items related to an informal evaluation
process.

2. On April 7, 2003, the PBA filed an unfair practice
charge alleging that a change in the past practice of assigning swing shifts
and the implementation of an informal evaluation system violated the New Jersey
Employer-Employee Relations Act, N.J.S.A. 34:13A-1 et seq. The charge was
amended on May 5 to also allege that the Township had instituted an informal
evaluation process by denying a police officer a swing shift assignment.
Hearings have been scheduled.